Foreword

Open Records. Kansas law on open records and open meetings is statutory. The right to access records developed in the common law and was then codified; it is not of constitutional genesis. Stephens v. Van Arsdale, 227 Kan. 676, 686, 608 P.2d 972, 981 (1980) citingNixon v. Warner Commc'ns, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). The Kansas Open Records Act (KORA), contained in K.S.A. 45-215, et seq., was enacted in 1984; the Kansas Open Meetings Act (KOMA), contained in K.S.A. 75-4317, et seq., was passed in 1972. The statutes are unrelated and do not overlap but are to be construed together. A few dozen reported decisions construing the acts exist, and there is a large volume of Attorney General's Opinions opining on both of them.

The predecessor to the current Kansas Open Records Act, K.S.A. 45-201, was enacted in 1957. The present statute became law in 1984 after having been first proposed in 1979. It is designed to be comprehensive, although no effort was made to glean all references to open or restricted access records from all Kansas statutes. Accordingly, specific provisions in other laws still control some open records exemptions. A study by the Revisor of Statutes located over 350 statutes that close specific types of records.

The former statute required open access only to those records "required to be kept and maintained." The few cases litigated addressed whether the record was required to be kept, or merely was incidentally kept. Judging by the cases, public interest in open records was slight until the post-Watergate era. In the late 1970s, disputes over the meaning of the Open Records Act, which was written negatively, i.e., that all records could be closed except those required to be kept and maintained, resulted in court interpretations favoring common law although not constitutional access. SeeStephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980).

At the urging of the Kansas Attorney General and other interested parties, particularly the media and local government groups, the legislature began to address enacting a new statute in 1979. Initial drafts were based largely on the Kentucky law, but the final version, including its characteristic laundry list of exceptions, was hammered out in committee, making the bill almost entirely original.

The principal reason for delay was the divisive abortion records issue. Right to Life in Kansas Inc. brought an action to access Medicaid records kept by the Department of Social and Rehabilitative Services identifying doctors who performed abortions. The legislature initially grappled with this politically hot issue, then abstained from passing or even considering open records bills until the Kansas Supreme Court ruled in 1982 that the abortion records must be provided under the old law. State, ex rel. Stephen v. Harder, 230 Kan. 573, 641 P.2d 366 (1982). The KORA was passed the next year.

The overarching aim was to ensure that all records, regardless of character, would be open unless specifically closed. The law contains a strong statement of public policy;

"It is declared to be the public policy of this State that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy."

Generally, “[a]ll public records shall be open for inspection by any person, except as otherwise provided by this act.” K.S.A. 45-218(a). Whether a record is available upon request often depends on whether and to what extent the public agency to whom the request is directed asserts any of the numerous exemptions set forth in the law that provide an agency “shall not be required to disclose” certain records. K.S.A. 45-221(a).

The KORA has been amended a number of times to add exceptions, definitions and clarifications. Since 1993, many new exceptions have been added to the list in K.S.A. 45-221(a), bringing the current total to 55. The Kansas Supreme Court has made it clear that the courts, not the agencies, interpret and enforce the law. The Kansas Attorney General has continued to interpret the law administratively in numerous opinions, and subject to one exception, has agreed to continue including the identities of victims of crimes in portions of the Standard Offense Reports open to public inspection. SeeKan. Att’y Gen. Op. 1992-149 (identity of victim of sexual assault may be withheld to prevent an unwarranted invasion of personal privacy). Administrative interpretation of Kansas Open Records Act (KORA) is given consideration and effect, but final construction of KORA rests with courts. Dept. of Social and Rehabilitative Services v. Public Employee Relations Bd. of Kansas Dept. of Human Resources, 249 Kan. 163, 815 P.2d 66 (1991).

Consistent with the policy of openness, the burden of proving that an item is exempt from disclosure under the Kansas Open Records Act (KORA) is on the agency or the public entity opposing disclosure. See Telegram Pub. Co., Inc. v. Kansas Dept. of Transp., 275 Kan. 779, 69 P.3d 578 (2003); Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002). The exception to this rule is if the plaintiff is seeking criminal investigation records; under such circumstances, the plaintiff is required to prove that disclosure of the records is in the public interest. Harris Enterprises, Inc., v. Moore, 241 Kan. 59 (1987). The KORA does not allow a public agency to refuse to produce records because such records are available from another or a more “appropriate” source. K.S.A. 45-215 et seq.Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002).

The KORA was passed by the legislature to ensure public confidence in government by increasing the access of the public to government and its decision-making processes. K.S.A. 45-215 et seq.; Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005). Whether the district court correctly applied the KORA and a particular exception to disclosure under KORA was a question of law involving interpretation of statute. K.S.A. 45-215 et seq.; Data Tree, LLC v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005).

The history and purposes of the KORA has been analyzed by Ted P. Frederickson in Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L. Rev. 205.

Effective July 1, 2015, the Kansas Legislature enacted HB 2256 which amended certain enforcement provisions to allow the Attorney General to determine that a public agency has violated KORA or KOMA. These provisions are set forth in K.S.A. 45-251, 45-252, and 45-253.

Effective July 1, 2016, the Kansas Legislature enacted SB 361, which expanded the definition of a “public record” beyond such record that is simply in possession of a public agency to mean “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of any officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.” According to Attorney General Derrick Schmidt in his legislative testimony related to the bill, the primary purpose of the new definition is to “apply it to otherwise public records on the private email accounts of state employees.” The new definition appears in K.S.A. 45-217(g).

Also effective July 1, 2016, the Kansas Legislature addressed issues related to police video by defining “Every audio or video recording made and retained by law enforcement using a body camera or vehicle camera” to be “criminal investigation records” as defined by K.S.A. 45-217(c). If a law enforcement chooses to refuse to disclose the footage under K.S.A. 45-221(a)(10) because it is a criminal investigation record, the public can access such video only through a court order. However, certain family members may also have a right to access such video under K.S.A. 45-254.

Open Meetings. The first open meetings law in Kansas was enacted in 1972 and amended in 1975. Only minor amendments have occurred since then, although the law surrounding how a public body may recess into executives session has recently been clarified. It is founded on the basic principle that the people have a right to know the public business and that public knowledge and information is essential to the effective functioning of the democratic process. Tacha, The Kansas Open Meeting Act; Sunshine on the Sunflower State?, 25 U. Kan. L. Rev. 169, 170. The statute contains a strong statement of legislative purpose in K.S.A. 75-4317:

"In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public."

Interpretation of the statute has rested largely with the Kansas Attorney General, who has, in numerous opinions, interpreted the statute liberally to effect its purpose. The Kansas Attorney General has consistently interpreted the law to require openness, and has interpreted the executive session provisions narrowly.

However, court interpretations of the statute have not been so liberal. While the Kansas Supreme Court has enforced the Act in obvious violations, it has tended to side with the governmental agencies in close cases. For example, the court has been moving even further away from the liberal interpretation of the Act in finding that a management company leasing from the county hospital board and running the hospital is not subject to the KOMA. Memorial Hospital Association Inc. v. Knutsen, 239 Kan. 663, 722 P.2d 1093 (1986). Additionally, in State v. Sedgwick County Commissioners, 244 Kan. 536, 770 P.2d 455 (1989), the court held a public body may change its own quorum requirements to avoid the KOMA.

The courts have held that executive sessions may cover non-exempt matters if segregation is impractical, and that a consensus may be reached in executive session as long as binding action is taken in open session. State v. USD 305, 13 Kan. App. 2d 117, 764 P.2d 459 (1988); O'Hair v. USD 300, 15 Kan. App. 2d 52, 805 P.2d 40 (1990).

Because there are very few binding Supreme Court decisions interpreting the law, the KOMA is still interpreted and enforced largely by the Attorney General and the Kansas district courts, at the trial level. Both the Attorney General and the district attorneys have made effective use of consent decrees to bring agencies covered by the Act into compliance.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

Public inspection refers to the right of the public to inspect governmental records when there is a laudable object to accomplish or a real and actual interest in obtaining the information. State, Dept of Social and Rehabilitative Services v. Public Employee Relations Bd. Of Kansas Dept of Human Resources, 815 P.2d 66, 72, 249 Kan. 163, 170 (1991).

3. Use of records

A requester may not use lists of names or addresses obtained pursuant to KORA for purposes of selling or offering for sale property or services. K.S.A. 45-220(c)(2)(A) and (B). Ministers or churches may use lists from public records to provide information about area churches; churches are generally not engaged in commercial business. Kan. Att’y Gen. Op. 2000-35. A requester may not sell, give or otherwise make available to any person such information for purposes of allowing that person to use the list in the same manner. In 2003 the legislature removed the criminal penalty contained within 21-3914 and replaced it with the current civil penalty. 2009-18.

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

Executive branch is subject to KORA under the definition of public agencies set forth in K.S.A. 45-245(f)(1), but records “which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state” are not public records under the KORA. K.S.A. 45-217(g)(3)(B). This provides is intended to “exclude records kept by individual members but not records of the governing bodies they serve. It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available. The person seeking the records of the governing body must get them from the central office rather than from the individual.” Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).

2. Legislative bodies

Legislative bodies are subject to KORA under the definition of public agencies set forth in K.S.A. 45-245(f)(1), but records “which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state” are not public records under the KORA K.S.A. 45-217(g)(3)(B). This provides is intended to “exclude records kept by individual members but not records of the governing bodies they serve. It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available. The person seeking the records of the governing body must get them from the central office rather than from the individual.” Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).

3. Courts

4. Nongovernmental bodies

Includes any entity receiving or expending and supported in whole or part by public funds. K.S.A. 45-217(f)(1). Does not include entities receiving public funds in return for property, goods, or services. K.S.A. 45-217(e)(2)(a).

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

Records included are those made, maintained or kept by or in possession of any public agency or any “officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.” K.S.A. 45-217(g)(1)(A) and (B). Exemptions are outlined specifically in K.S.A. 45-221(a).

By statutory decree, it is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy. K.S.A. 45-216(a). Courts are required to liberally construe and apply the Kansas Open Records Act (KORA) to promote a policy of open inspection of public records. Wichita Eagle and Beacon Pub. Co., Inc. v. Simmons, 50 P.3d 66, 274 Kan. 194 (2002). It is state public policy that public records shall be open for inspection by any person, and the Kansas Open Records Act (KORA) shall be liberally construed and applied to promote such policy. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681, 28 Media L. Rep. 1617 (2000). “The function of liberal construction is called into use where there is ambiguity in the language of the statute, or, in other words, where there are one or more interpretations which may fairly be made.” Salina Journal, et al., v. Brownback, et al., Kansas Court of Appeals No. 115,194, HN. 7 (2017), citing Eveleigh v. Conness, 261 Kan. 970, 977-78, 933 P.2d 675 (1997).

The act does not cover records owned by a private person or entity which are not related in functions, activities, programs or operations funded by public money or records made, maintained or kept by members of legislature or other governing body. K.S.A. 45-217(g)(3)(A) and (B). However, under such circumstances, "private person" shall not include an officer or employee of a public agency who is acting pursuant to the officer's or employee's official duties. K.S.A. 45-217(g)(3)(A). It also does not include employer records relating to the employer's individually identifiable contributions made on behalf of employees for workers' compensation, Social Security, unemployment insurance or retirement. K.S.A. 45-217(g)(3)(C). However, employer records relating to lump-sum payments for contributions as described in K.S.A. 45-217(g) are disclosable. K.S.A. 45-217(g)(3)(A). A public agency is not required to create a record or to prepare a report or conduct an investigation upon a request for information. Kan. Att’y Gen. Op. 1993-126.

The act does not cover records owned by a private person or entity and are not related to functions, activities, programs or operations funded by public funds. K.S.A. 45-217(g)(3)(A).

The act does not cover records which are made, maintained or kept by an individual who is a member of the legislature or of the governing body of any political or taxing subdivision of the state. K.S.A. 45-217(g)(3)(B). This provides is intended to “exclude records kept by individual members but not records of the governing bodies they serve. It excuses individual members of such governing bodies from the burden of producing records that they maintain personally in their performance of official duties, but the records of the governing bodies they serve are still considered public records and thus must be made available. The person seeking the records of the governing body must get them from the central office rather than from the individual.” Ted Frederickson, Letting the Sunshine In, 33 Kan. L. Rev. 205, 221 (Winter 1985).

The act does not cover employer records relating to the employer's individually identifiable contributions made on behalf of employees for workers' compensation, Social Security, unemployment insurance or retirement. This does not apply to employer records of lump-sum payments for contributions as described in K.S.A. 45-217(g). K.S.A. 45-217(g)(3)(B).

1. What kinds of records are covered?

In Kansas, “public record” means “any recorded information, regardless of form, characteristics or location, which is made, maintained or kept by or is in the possession of” either a public agency or “any officer or employee of a public agency pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency.” K.S.A. 45-217(g)(1)(A) and (B). This includes settlement agreements on cases of the Kansas Public Employees Retirement System (KPERS) and the investments of money in the fund as public records. K.S.A. 45-217(g)(2). However, KPERS is not obligated to disclose a member's name and address. Kan. Att’y Gen. Op. 1994-57.

2. What physical form of records are covered

Public record means any recorded information regardless of form or characteristics. K.S.A. 45-217 (g)(1). The definition of open records was amended in 2016 to clarify that communications such as private emails of “any officer or employee of a public agency” that are made “pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency” are subject to KORA. This amendment to the definition of public records was largely in response to controversy related to an open records request for emails sent by the governor’s budget director and a resulting attorney general opinion, Kan. Att’y Gen. Op. 2015-10. Attorney General Derek Schmidt was instrumental in drafting the legislature’s 2016 amendment which, according to the attorney general’s legislative testimony, applies KORA to “the private email accounts of state employees” if public employees use those accounts “to do their public jobs.”

3. Are certain records available for inspection but not copying?

Agencies are not required to provide copies of radio or recording tapes or discs, video tapes or film, pictures, slides, graphics, illustrations, or similar audio or visual items or devices unless they are played or shown at a public meeting. K.S.A. 45-219(a).

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

Generally, a requester can only choose a format in which the record is already held. Any person has the right to obtain a computerized voter registration list in computer format if the public agency has the capability of providing such record in computer format. Kan. Att’y Gen. Op. 1988-152. See alsoK.S.A. 45-501.

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

A public agency is not required to disclose software programs for electronic data processing and documentation thereof, but each public agency shall maintain a register that is open to the public which describes: (1) the information which the agency maintains on computer facilities, and (2) the form in which this information can be made available using the existing computer programs. K.S.A. 45-221(a)(16).

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Fees for copies of records may not exceed the actual cost of furnishing copies, including cost of staff time. K.S.A. 45-219(c)(1).

$.25/page is reasonable for copies of public records. K.S.A. 45-219(c)(5). Although a public agency may establish subscription fees and online access fees for computerized public records, these records must also be available for a fee not exceeding the actual cost of production. Kan. Att’y Gen. Op. 1995-64.

Any person requesting records may appeal the reasonableness of the fees charge for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).

2. Particular fee specifications or provisions

Fees shall include the cost of staff time required to make the information available. K.S.A. 45-219(c)(1). Presumably this means search time is included.

The Kansas Department of Administration has issued a memo to attempt to standardize fees for state agencies. Record requests that can be provided with less than one hour of staff time or fewer than 25 pages will be provided at no charge. For requests that exceed that amount, the following rates shall apply: copies at $0.25 per page; mailing at $0.50 for first 5 pages, $0.25 for additional 5-page increments; fax at $0.65 per 10-page fax. Kansas Department of Administration Policy and Procedure for Obtaining Copies of or Access to Public Records Pursuant to the Kansas Open Records Act. Staff time will be charged at the rate of pay for each person(s) whose time is used in order to assist and/or respond to a specific request. This may include the time spent to access records maintained on computer facilities, review records to determine whether closure exceptions apply, and/or redact open from closed information. Attorney time will be charged at $60 per hour. Clerical time will be charged at $18 per hour. Information Technology services will be charged at $38 per hour. Id.

Fees for electronic records shall include only use of any computer services including staff time. K.S.A. 45-219(c)(2). There is no specific cost provision for microfiche or non-print media.

3. Provisions for fee waivers

A public agency "may charge." K.S.A. 45-218(f). While the FOIA (federal government record act) provides for a poverty exception, the KORA does not have such an exception. A data processor under contract with a public agency is not required to pay any charges pursuant to KORA when the sole purpose of such data processor is to develop new programs for easier access. Kan. Att’y Gen. Op. 1993-132.

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

A charge of $.25 page is deemed reasonable. Any person requesting records may appeal the reasonableness of the fees charge for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5). Although there are no reported decisions or Attorney General Opinions, there have been numerous examples of excessive charges which are thought to be discouragement.

2. Availability of an ombudsman

3. Commission or agency enforcement

Effective July 1, 2015, the Kansas Legislature enacted HB 2256 which made sweeping changes to enforcement provisions of the KORA and Kansas Open Meetings Act. The bill allows the Attorney General, by a preponderance of the evidence after investigation, to find a violation and enter into a consent order with the public agency or issue a finding of violation to the agency prior to filing an action in district court. A consent order, which must be signed by the head of the public agency and any officer found to have violated the statute, may contain admissions of fact, require completion of training approved by the Attorney General, impose a civil penalty of up to $250 for each violation and set forth the agency’s agreement to comply with the requirements of KORA or KOMA. K.S.A. 45-251(a)(1)(A)(ii). A finding of violation may contain orders to cease and desist from further violation, comply with KORA or KOMA, complete training approved by the Attorney General and pay a civil penalty of up to $500 for each violation. K.S.A. 45-251(c)(4)(B).

The Attorney General can then apply to the district court for enforcement in the county where the consent order or finding of violation is issued or is effective. K.S.A. 45-251(c)(2). If the court finds the Attorney General did not abuse discretion in entering into the order or issuing the finding, the court shall enter an order which enjoins the agency to comply, imposes a civil penalty not less than the amount ordered and not more than $500 for each violation, requires the public agency to pay the Attorney General’s court costs and investigative costs and provides any other remedy the court deems appropriate. K.S.A. 45-251(c)(4). The court may require the public agency to pay the Attorney General’s attorney fees and is required to do so if the violation was not made in good faith and was without reasonable basis in fact or law. K.S.A. 45-251(c)(5)(A).

The bill also creates, in the State Treasury, the Attorney General’s Open Government Fund to be used to carry out provisions of the KORA and Kansas Open Meetings Act. HB 2256 New Sec. 7 (a).

F. Are there sanctions for noncompliance?

In addition to the remedies available to the attorney general under K.S.A. 45-251, any agency that knowingly violates the act can be fined up to $500 for each violation. K.S.A. 45-223. In a private enforcement action, attorney fees may be awarded to a party if the court finds that the other party’s conduct was in bad faith and without a reasonable basis in fact or law. K.S.A. 45-222(c).

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

There is no one central agency or repository that possesses a list or access to all public records. In order to obtain access to or copies of public records, a requestor must contact each/all/every public agency that may have a copy of the records.

3. Records retention requirements

“Nothing in this act shall be construed to require the retention of a public record nor to authorize the discard of a public record." K.S.A. 45-216(b). State agencies and counties are subject to the Preservation Act and are prohibited from destroying public records except as permitted by minimum records retention schedules as set forth by the State Records Board. K.S.A. 45-403; 45-404(b). Unless some specific law applies to a specific record, all other public agencies may dispose of their records as they deem advisable.

Custodians may refuse a request if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the agency. K.S.A. 45-218(e). Refusal must be sustained by a preponderance of the evidence.

Exemptions are discretionary and are not patterned after the federal Freedom of Information Act.

2. Discussion of each exemption

A list of 55 exceptions to mandatory disclosure is found in K.S.A. 45-221.

Records specifically prohibited or restricted from disclosure by federal law, state statute, or rule of Kansas Supreme Court. K.S.A. 45-221(a)(1). Includes tax return information. Kan. Att’y Gen. Op. 1990-20; K.S.A. 79-3614. This is the only exception that is mandatory. All other exceptions are discretionary with the public agency, but in practice, public agencies treat all exceptions as absolute.

Information concerning an individual who lawfully makes a donation to a public agency. K.S.A. 45-221(a)(8).

Testing and examination materials before the test is given or individual scores, other than records which show only passage or failure. K.S.A. 45-221(a)(9).

Criminal investigation records. A district court may order disclosure in an action brought under K.S.A. 45-222 (civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10).

Public interest means more than public curiosity. Public interest existed in disclosure of murder investigation files where inconsistent statements were reported and definite disagreements arose between various law enforcement agencies. See Harris Enterprises Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987). Records compiled in the process of preventing, detecting or investigating violations of criminal law are not subject to mandatory disclosure. Kan. Att’y Gen. Op. 1987-25. A "jail book" listing persons placed in jail and other general information must be open for public inspection. Id. The front page of standard offense report must be open for public inspection. Id.; Kan. Att’y Gen. Op. 1998-38 (All information on the front page except for the victim's social security number is presumed to be open, and portions of the front page can only be closed if the victim was the victim of certain sex crimes or under the unusual event that disclosure would constitute a clearly unwarranted invasion of the victim's personal privacy). Mug shots may be disclosed. Id. A permanent record of all felony offenses reported in a jurisdiction must be open for public inspection. Kan. Att’y Gen. Op. 1979-17. Reports, memoranda, or other internal government documents made by officers in connection with an investigation or prosecution are not open for public inspection. Id. Motor vehicle accident reports must be open for public inspection. Id. Municipal court DUI diversion agreements are public records under KORA and must be disclosed upon request. Kan.Att’y Gen. Op. 1994-7.

This is the only judicial protocol for obtaining records among the 55 exceptions.

Plans, designs, drawings or specifications which are the property of a private person. K.S.A. 45-221(a)(18).

Well samples, logs or surveys which the state corporation commission requires to be filed. K.S.A. 45-221(a)(19).

Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed. K.S.A. 45-221(a)(20).

Draft minutes of a county commission meeting are "preliminary drafts" that would fall within the exception in K.S.A. 45-221(a)(20), and the board of county commissioners is not required to disclose them to the public prior to being formally approved by the board unless the draft minutes are publicly cited or identified either in an open meeting, or in an agenda of an open meeting. Kan. Att’y Gen. Op. 2013-05.

Records of a public agency having legislative powers pertaining to proposed legislation. K.S.A. 45-221(a)(21).

Records of a public agency having legislative powers, which pertain to research prepared for one or more members of such agency. K.S.A. 45-221(a)(22).

Public records where the public disclosure would constitute an “clearly unwarranted invasion of personal privacy.” K.S.A. 45-221(a)(30). Kan. Att’y Gen. Op.s 1989-50, 1992-149. K.S.A. 45-217(b) defines this phrase to mean “revealing information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public. This amendment was in response to the decision in Data Tree v. Meek, 109 P.3d 1226, 279 Kan. 445 (2005).

Public records pertaining to prospective location of a business or industry, where previous public disclosure has not been made. K.S.A. 45-221(a)(31).

Engineering and architectural estimates made by or for any public agency relative to public improvements. K.S.A. 45-221(a)(32).

Certain railroad records on sale, lease or rehabilitation of property in Kansas given to public agencies. K.S.A. 45-221(a)(37).

Risk-based capital reports and capital plans, corrective orders including the working papers and the results of any analysis filed with the commissioner of insurance in accordance with K.S.A. 40-2c20, and amendments thereto. K.S.A. 45-221(a)(38).

All financial analysis ratios and examination synopses concerning insurance companies that are submitted to the commissioner by the national association of insurance commissioners' insurance regulatory information system. K.S.A. 45-221(a)(41).

Any records for which disclosure is restricted or prohibited by a tribal-state gaming compact. K.S.A. 45-221(a)(42).

Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center in the management and operation of the university hospital which the chancellor of the University of Kansas or the chancellor's designee determines would give an unfair advantage to competitors of the University of Kansas Medical Center. K.S.A. 45-221(a)(43).

An individual’s e-mail, cell phone number, and other contact information given to a public agency for the purpose of public agency notifications which are widely distributed to the public. K.S.A. 45-221-(a)(49).

Records of a public agency on a public website which are searchable and identify personal information of a law enforcement officer when such officer files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(51).

aaa. Records of a public agency on a public website which are searchable and identify personal information of judge or government attorney when such officer of the law files with the custodian of the record to have the information restricted. This restriction expires after five years, but the officer may make a new request for restriction at any time. K.S.A. 45-221(a)(52).

bbb. Records of a public agency which identify contact information of a person licensed to carry concealed handguns or any person who enrolled in or completed weapons training. K.S.A. 45-221(a)(53).

ccc. Records of a utility concerning information about cyber security threats provided to law enforcement or other federal, state or regional organizations which have responsibility for safeguarding natural resources and channels of communication. K.S.A. 45-221(a)(54).

ddd. Records of a public agency containing information or reports by the state bank commissioner in the course of licensing or examining a person engaged in money transmission business. K.S.A. 45-221(a)(55).

B. Other statutory exclusions

Any other statute which specifically restricts disclosure takes precedence over the KORA. K.S.A. 45-221(a)(1). The Revisor of Statutes has identified over 350 such other statutes. There are no Kansas statutes, case law, or other provisions which provide for the overriding of KORA but there is precedent for further restricting it.

The UCC requires the filing office to offer to sell or license to the public on a nonexclusive basis, in bulk, copies of all its filed records, in every medium from time to time. K.S.A. 84-9-523(g).

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

A public agency is not required to disclose records the disclosure of which is prohibited or restricted by federal law, state statute, or rule of the Kansas Supreme Court. K.S.A. 45-221(a)(1). Pending litigation does not itself transform Kansas Department of Transportation records into confidential or privileged communications. Kan. Att’y Gen. Op. 1995-12.

C. Bank records

K.S.A. 9-1712 provides for the confidentiality of all information gathered or recorded by the bank commissioner in the investigation or examination on any bank. Kan. Att’y Gen. Op. 1983-112. See also 1978-67 which states that only those records derived from examination of a bank pursuant to K.S.A. 9-804 are confidential. Information contained in articles of incorporation and the application for a certificate of authority are open for inspection. Id.

D. Budgets

E. Business records, financial data, trade secrets

Public records pertaining to prospective location of a business or industry are exempt from disclosure under K.S.A. 45-221(a)(31). Well samples, logs or surveys which the state corporation commission requires to be filed are exempt from disclosure under K.S.A. 45-221(a)(19). Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center are also exempt under K.S.A. 45-221(a)(43).

Disclosure of financial records of public grain elevators applying for licenses is mandated under KORA, Kan. Att’y Gen. Op. 1983-49. A settlement agreement entered into by a city is a public record under KORA and therefore must be disclosed. 1993-55. Tax audit records are public records under KORA, but some information contained in such records may be confidential and disclosure is prohibited by K.S.A. 79-3234. Kan. Att’y Gen. Op. 1995-06.

F. Contracts, proposals and bids

The following are exempt from disclosure: plans, designs, drawings or specifications which are the property of a private person (K.S.A. 45-221(a)(18)); specifications for competitive bidding ((27)); sealed bids and related documents ((28)); the bidder's list of contractors ((32)); and engineering and architectural estimates made by or for any public agency relative to public improvements ((33)).

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

Records related to persons licensed to carry concealed handguns are confidential and may not be disclosed pursuant to the KORA, but such protections only govern the disclosure of such information by a public agency. There is no language in the PFPA that grants a concealed carry licensee the right to refuse to disclose his or her licensure status to a public agency employer. Kan. Att’y Gen. Op. 2014-02. However, Kansas law now allows for unlicensed concealed carry and renders this largely moot.

L. Homeland security and anti-terrorism measures

Public agencies are not required to disclose records if the disclosure of such records “would pose a substantial likelihood of revealing security measures that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; or (C) private property or persons, if the records are submitted to the agency.” K.S.A. 45-221(a)(45).

M. Hospital reports

Medical, psychiatric, psychological or alcoholism or drug dependency treatment records are exempt from disclosure. K.S.A. 45-221(a)(3); Kan. Att’y Gen. Op. 1994-81. Since personal privacy for those undergoing evaluation or treatment for alcohol or drug abuse is protected by federal law, absent waiver of the restriction by consent of the individual, the address of persons in the custody of the Kansas Department of Corrections who reside at a facility for the purpose of alcohol or substance abuse evaluation or treatment may not be distributed as required by the KORA. Kan. Att’y Gen. Op. 2011-05.

A nonprofit community mental health center under supervision and control of a county and the state department of social and rehabilitation services is a public agency under KORA and is subject to KORA requirements. Kan. Att’y Gen. Op. 1994-111. However, state institutions for the mentally disabled’s records are confidential. K.S.A. 76-12b11. Also, the records of community mental health or mental retardation facilities and psychiatric hospitals are privileged. K.S.A. 65-5602.

N. Personnel records

1. Salary

K.S.A. 45-221(a)(4) states “Personnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries or actual compensation employment contracts or employment-related contracts or agreements and lengths of service of officers and employees of public agencies once they are employed as such.” See also Kan. Att’y Gen. Op. 1987-109; 1994-121 (personnel records are exempt from disclosure).

2. Disciplinary records

3. Applications

Letters of reference or recommendation are not open to the public. K.S.A. 45-221(a)(6). Further, K.S.A. 45-221(a)(4) also allows a public agency to refuse to disclose records related to “applicants for employment.” Moreover, in 2017, the Kansas Court of Appeals expanded this exemption to include the identities of those seeking elected public office. Salina Journal, et al., v. Brownback, et al., Kansas Court of Appeals No. 115,194 (2017),

4. Personally identifying information

Information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy is excepted. K.S.A. 45-221(a)(30). The definition of “clearly unwarranted invasion of personal privacy” is in K.S.A. 45-217(b).

3. 911 tapes

4. Investigatory records

Investigatory records are generally closed to the public. However, a district court may order disclosure in an action brought under K.S.A. 45-222 (civil remedies to enforce KORA) if the court finds that disclosure: (1) is in the public interest; (2) would not interfere with any prospective law enforcement action; (3) would not reveal the identity of any confidential source or undercover agent; (4) would not reveal confidential investigation techniques or procedures not known to the general public; (5) would not endanger the life or physical safety of any person; and (6) would not reveal the name, address, phone number or any other information which specifically and individually identifies the victim of any sexual offense in Article 35 of Chapter 21 of the Kansas Statutes Annotated, and amendments thereto. K.S.A. 45-221(a)(10).

Criminal records previously closed under a valid expungement order may not be disclosed to the victim, or anyone else, unless such person qualifies for access pursuant to K.S.A. 21-6614. Kan. Att’y Gen. Op. 1992-27. Municipal court DUI diversion agreements are public records under KORA and must be disclosed upon request. 1994-07.

7. Victims

The name, address, phone number or any other information which would specifically identify the victim of a sexual offense may not be revealed. K.S.A. 45-221(a)(10)(F). Information concerning other victims is not specifically addressed and is presumably open for inspection unless part of a criminal investigation. K.S.A. 45-221(a)(10). (Records compiled in contested case under the Crime Victims Reparations Board are open. Kan. Att’y Gen. Op. 1982-28); (Child abuse records are not open for public inspection. 1977-308). In police records pertaining to a sexual assault, any victim specific or identifying information can be deleted from the record prior to any disclosure to prevent an unwarranted invasion of personal privacy, pursuant to K.S.A. 45-221(a)(30). Kan. Att’y Gen. Op. 1992-149.

8. Confessions

Effective July 1, 2017, law enforcement agencies are required to make electronic recordings of certain interrogations, including the “entire custodial interrogation at a place of detention when the interrogation concerns a homicide or a felony sex offense.” K.S.A. 22-4620(e)(1). However, “[e]very electronic recording of any statement as required by this section shall be confidential and exempt from the Kansas open records act in accordance with K.S.A. 45-229, and amendments thereto.” K.S.A. 22-4620(g).

10. Police techniques

11. Mugshots

Mug shots are not necessarily subject to disclosure because they are generally considered to be criminal investigation a law enforcement agency may choose not to disclose pursuant to K.S.A. 45-221(a)(10). Kan. Att’y Gen. Op. 1987-25.

12. Sex offender records

Disclosure of sex offender information is public record available for disclosure so long as victim identifying information is not disclosed. K.S.A. 45-221(a)(29)(c). The state Bureau of Investigation's disclosure over the internet of sex offender registration information, when construed in harmony with the Open Records Act, does not violate the sex offender registration statute. K.S.A. 22-4901 et seq.; 45-215 et seq.; State v. Wilkinson, 9 P.3d 1, 269 Kan. 603 (2000).

Prison Health Services, a private entity that contracts with the Kansas Department of Corrections to provide medical and mental health services for inmates, is not a public agency. Thus personnel records owned and maintained by Prison Health Services are not public records subject to disclosure under the Kansas Open Records Act. Cited herein: K.S.A. 45-216; 45-217.

R. Public utility records

S. Real estate appraisals, negotiations

County appraiser's office must provide access to the database maintained in the office, provided that the records requested are open public records. A requester of such database may manipulate and repackage this information into a different format for sale as long as K.S.A. 21-3914 and K.S.A. 45-220(c) are followed. Kan. Att’y Gen. Op. 1994-104; (Public land records are open for inspection. 1994-132).

2. Trustee records

3. Student records

Applications, financial statements and other information submitted in connection with applications for student financial assistance are exempt from disclosure. K.S.A. 45-221(a)(17). Other records are presumably open, but may be preempted by federal law.

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

An individual county commissioner may not examine personnel records which are otherwise not open for public inspection. However, if appropriate actions are taken as a board at an open meeting, an entire board of county commissioners may inspect county personnel records. Kan. Att’y Gen. Op. 1994-121.

A public agency shall delete the identifiable portions of the record and make available to the requester any remaining portions which are subject to disclosure pursuant to KORA. The agency is not required to disclose portions of records pertaining to a specific individual or such a limited group that the individual identities are reasonably ascertainable. K.S.A. 45-221(d). (May delete certain tax information and court settlements from financial statements, Kan. Att’y Gen. Op. 1983-49).

1. Birth certificates

2. Marriage and divorce

As of October 1, 2015, the Kansas Supreme Court amended Supreme Court Rule 106 so that “marriage licensing documents in the custody of a district court are confidential and are not subject to disclosure under the Kansas Open Records Act, K.S.A. 45-215 et seq.” Instead, courts are to prepare a “limited marriage record” that prohibits the inclusion of certain information, including an applicant's date or city of birth and an applicant's mother’s maiden name.”

3. Death certificates

4. Infectious disease and health epidemics

IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

The custodian receives requests to inspect records. If the person who receives the request is not the custodian of the public record requested, such person shall notify the requester and shall furnish the name and location of the custodian, if known or readily ascertainable. K.S.A. 45-218(c).

2. Does the law cover oral requests?

An agency may require a written request for inspection, but shall not otherwise require a request to be made in any particular form. K.S.A. 45-220(b).

A public agency may require a person desiring to inspect public records to notify the agency not more than 24 hours prior to the hours established for inspection and obtaining copies. Such notice shall not be required to be in writing. K.S.A. 45-220(d).

If a request is denied, the custodian, upon request, shall provide a written statement of the grounds for denial. K.S.A. 45-218(d).

The KORA does not require additional written steps; however, proof of requests may be necessary in enforcement actions under K.S.A. 45-222.

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

A request must be acted upon as soon as possible, but not later than the third business day following the date the request is received. K.S.A. 45-218(d). "As soon as possible" means without undue delay, and immediately, if circumstances make that possible. Stauffer Communications Inc. v. Hayes, District Court of Jefferson Co., No. 87 C 66 (1987).

2. Informal telephone inquiry as to status

3. Is delay recognized as a denial for appeal purposes?

A delay is not recognized as a denial for appeal purposes. If the request is not granted immediately, the custodian is required to give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. K.S.A. 45-218(d).

1. Time limit to file an appeal

2. To whom is an appeal directed?

3. Fee issues

Any person requesting records may appeal the reasonableness of the fees charge for providing access to or furnishing copies of such records to the Secretary of Administration whose decision shall be final. K.S.A. 45-219(c)(5).

2. Priority

3. Pro se

A party may bring the action pro se since most of the burden of showing compliance is upon the custodian and agency. However, since K.S.A. 45-222(d) allows an award of attorney fees in favor of a prevailing agency on a showing of bad faith and no reasonable basis in fact of law, legal assistance would be advisable.

a. Denial

b. Fees for records

c. Delays

d. Patterns for future access (declaratory judgment)

5. Pleading format

6. Time limit for filing suit

There is no provision for limitation of actions under K.S.A. 45-222(a). K.S.A. 60-512 is a three-year statute of limitations for "liability created by statutes," but depending upon the relief sought, a plaintiff should file a timely suit to avoid laches.

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

B. What governments are subject to the law?

State, County and Municipal governments. “[A]ll meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions” of the state of Kansas, “including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public.” K.S.A. 75-4318(a).

1. State

2. County

3. Local or municipal

See above. City governments are subject to the law. K.S.A. 75-4318(a). “The [c]ity is a unit of government subject to the Kansas Open Meetings Act.” City of Topeka v. Imming, 51 Kan. App. 2d 247, 254, 344 P.3d 957, 963 (2015).

C. What bodies are covered by the law?

“[A]ll meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions” of the state of Kansas, “including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public.” K.S.A. 75-4318(a).

Those receiving or expending public funds and supported in whole or in part by public funds are subject to KOMA, K.S.A. 75-4318(a); (Garden City/Finney County Alcohol Fund Advisory Committee is subject to KOMA. Kan. Att’y Gen. Op. 1980-201). 1991-150. A political party precinct committee is not an administrative or legislative agency of state or local government and is not subordinate to such a body. Such a committee is not subject to KOMA. 1994-157.

7. Advisory boards and commissions, quasi-governmental entities

b. has legislative or administrative powers or at least is legislative or administrative in its method of conduct; and

c. must be a governmental entity at the state or local level, whether it is the governing body or some subordinate group; and

d. must receive or expend public funds or be a subordinate group of a body subject to the Act; and

e. must be supported in whole or in part by public funds or be a subordinate group of a body which is so financed. State ex rel, Murray v. Palmgren, 231 Kan. 524, 535, 646 P.2d 1091 (1982); Smoot and Clothier, Open Meetings Profile: The Prosecutor's View, 20 Washburn L.J. at 256-57; Kan. Att’y Gen. Op.s 1986-84, 1993-41, 1993-73, 1993-130. Governor-Elect advisory groups were held not subject to KOMA. Associated Press v. Sebelius, 31 Kan.App 2d. 1107, 78 P.3d 486 (2003).

8. Other bodies to which governmental or public functions are delegated

Any legislative or administrative body or subordinate group thereof receiving or expending funds and supported in whole or in part by public funds with the exception of those performing quasi-judicial functions. K.S.A. 75-4318(a).

9. Appointed as well as elected bodies

Both appointed and elected bodies are subject to the Act if they meet the standards set out for advisory, commissions, or other bodies to which government functions are delegated. Kan. Att’y Gen. Op. 1994-55.

Records of applicants for appointment to new seats on a county commission were not excepted under KORA, since the applications were not for state employment, did not fall under pre-decisional work by the governor and did not fall under the exception for correspondence between a public agency and private individual. Salina Journal and Associated Press v. Sam Brownback, et. al., 2015-CV-65 (Sept. 18, 2015).

D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

Majority must be present. K.S.A. 75-4317a. In 2009, the legislature addressed “serial meetings” i.e., communications involving less than a majority of the members of an agency, but which collectively resulted in at least a majority involvement. Interactive communications now must be open if they 1) collectively involve a majority of the members; 2) share a common topic or discussions of the agency’s affairs; 3) are intended by any or all participants to reach agreement in a matter that would require binding action. K.S.A. 75-4318(f).

b. What effect does absence of a quorum have?

2. Nature of business subject to the law

Interactive communication, for the purposes of the KOMA, requires a mutual or reciprocal exchange between or among members of a body or agency subject to KOMA. Kan. Att’y Gen. Op. 2009-22. Interactive communication does not occur when a non-member of a body or agency communicates with a majority of that body or agency board and a member responds and shares the response with other members. Id. Should there be further interactive communications among a majority of the members concerning the business of the body, and there is an intent by any or all of the participants to reach agreement on a matter that would require binding action, those communications are subject to the Kansas Open Meetings Act. Id.

b. Deliberation toward decisions

These are subject to the Act. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817 (1978); Kan. Att’y Gen. Op. 1980-197. Deliberations by administrative bodies that are authorized by law to exercise quasi-judicial functions when such bodies are deliberating matters relating to a decision involving such quasi-judicial functions, are not open. K.S.A. 75-4318(g)(1).

3. Electronic meetings

School board members may violate KOMA if three or more members simultaneously engage in interactive discussion of board business through the use of computers. K.S.A. 75-4317, et seq. However, the sending of electronic mail to other board members, standing alone, does not constitute "interactive communications" under KOMA. Kan. Att’y Gen. Op. 1995-13. But, majority must be present. K.S.A. 75-4317a.

a. Conference calls and video/Internet conferencing

Telephone meetings are within the definition of "meeting" in K.S.A. 75-4317a. A public body subject to the Kansas Open Meetings Act may legally conduct meetings by telephone, if it does so in compliance with all of the requirements of the KOMA. Regardless whether a meeting is to be conducted telephonically, in person, by video-conference, or even through third parties, the requirements of the KOMA remain applicable. Kan. Att’y Gen. Op. 2005-3. A public entity subject to the Kansas Open Meetings Act may conduct meetings outside of Kansas or by teleconference or videoconference if the public entity complies with all of the requirements of the Kansas Open Meetings Act. Kan. Att’y Gen. Op. 2011-23.

b. E-mail

E-mail alone is not considered "interactive communication." Kan. Att’y Gen. Op. 1995-13. Interactive communication does not occur when a non-member of a body or agency communicates with a majority of that body or agency board and a member responds and shares the response with other members. Further interactive communications among a majority of the members concerning the business of the body where there is an intent to reach agreement on a matter that would require binding action are subject to KOMA. Kan. Att’y Gen. Op. 2009-22.

e. Social media and online discussion boards

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

"Any gathering, assembly, telephone call or any other means of interactive communication by a majority of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency." K.S.A. 75-4317a. Telephone calls between county commissioners were not "meetings" under the prior statutes. State Ex Rel. Stephan v. Board of County Commissioners of Seward County, 254 Kan. 446, 866 P.2d 1024 (1994).

b. Notice

The law does not set a time limit for giving notice. Notice must be given to "Any person requesting." K.S.A. 75-4318(b). Notice furnished to an executive officer of an employee's organization or trade association is deemed notice to the entire membership, K.S.A. 75-4318(b)(2). (Publication of notice in Kansas Register is adequate notice to those persons subscribing to that publication. Kan. Att’y Gen. Op. 1982-141). (Notice requirements are met by making agenda available at city building during business hours and by mailing copies to those requesting. Kan. Att’y Gen. Op. 1979-218). (Does not have to be mailed if available at public place. Kan. Att’y Gen. Op. 1986-113). An appropriate notice under the circumstances regarding legislative conference committee meeting must be given to any person requesting a notice. Kan. Att’y Gen. Op. 1993-113.

Penalties and remedies for failure to give adequate notice- Intentional violation subjects the violator to a possible civil penalty of not more than $500. Any binding action taken at any such meeting held in violation of the provisions of the Act is voidable. K.S.A. 75-4320(a).

Notice furnished to an executive officer of an employee's organization or trade association is deemed notice to the entire membership, K.S.A. 75- 4318(b)(2). (Publication of notice in Kansas Register is adequate notice to those persons subscribing to that publication. Kan. Att’y Gen. Op. 1982-141). (Notice requirements are met by making agenda available at city building during business hours and by mailing copies to those requesting. Kan. Att’y Gen. Op. 1979-218). (Does not have to be mailed if available at public place. Kan. Att’y Gen. Op. 1986-113). An appropriate notice under the circumstances regarding legislative conference committee meeting must be given to any person requesting a notice. Kan. Att’y Gen. Op. 1993-113.

Intentional violation subjects the violator to a possible civil penalty of not more than $500. Any binding action taken at any such meeting held in violation of the provisions of the Act is voidable. K.S.A. 75-4320(a).

c. Minutes

Not specifically addressed with respect to special meetings.

Minutes are public record. Public records discussed in an open meeting, pursuant to KOMA, must be disclosed even though such records might otherwise be permissibly closed under KORA. (K.S.A. 45-221(a)(4)) involving personnel records and performance ratings. Kan. Att’y Gen. Op. 1992-132.

3. Closed meetings or executive sessions

In 2017, the KOMA provision related to executive session were amended so that a governing body may recess into executive session only after making a motion, which is seconded, containing (1) [a] statement describing the subjects to be discussed during the closed or executive meeting; (2) the justification listed in subsection (b) for closing the meeting; and (3) the time and place at which the open meeting shall resume. K.S.A. 75-4319(a).

No official action may be taken at closed meetings. K.S.A. 75-4319(c).

A public agency may permit individuals who will assist with discussion in an executive session. However, "mere observers" cannot attend executive sessions. Kan. Att’y Gen. Op. 1992-56.

a. Definition

Although there is no provision in KOMA defining its terms, the Attorney General’s Office has recently defined and differentiated between the terms “recess and “adjourn” in the context of entering executive session. Kan. Att’y Gen. Op. 2017-20. There, the Attorney General opined that “[t]he term “recess,” as used in K.S.A. 2017 Supp. 75-4319(a), means a suspension of an open meeting. The term “adjourn,” as used in K.S.A. 2017 Supp. 75-4319(a), means ending an open meeting. A public body or public agency may only recess an open meeting to enter into a closed or executive meeting if the closed or executive meeting occurs contemporaneously with the open meeting. A public body or public agency has the discretion to designate the location of a closed or executive meeting if the location of the closed or executive meeting allows the public body or public agency to conduct the closed or executive meeting contemporaneously with the open meeting.” See also Kan. Att’y Gen. Op. 1996-14.

Likewise, although KOMA does not define a “statement describing the subjects to be discussed”, the Attorney General has recently opined that “a public body or agency must do more than provide a generic or vague summary, or a list of the subject(s) to be discussed. However, the KOMA does not require that the statement describing what will be discussed to be so detailed that it negates the usefulness of a closed or executive meeting. The determination of whether a motion to recess into a closed or executive meeting sufficiently describes the subject(s) to be discussed in a specific situation is a fact-sensitive question which must be determined on a case-by-case basis.” Kan. Att’y Gen. Op. 2018-1.

A motion to recess into a closed or executive meeting may only utilize one justification as listed in K.S.A. 2017 Supp. 75-4319(b), but multiple subjects may be discussed if those subjects fall within the justification stated in the motion to recess into a closed or executive meeting. Kan. Att’y Gen. Op. 2018-1.

b. Notice requirements

No specified time limit. Notice must be given; not limited to situations where notice is possible. Kan. Att’y Gen. Op. 1981-15. Because a motion for executive session may only be made in an open meeting, the notice requirements are the same as for open meetings generally. K.S.A. 75-4319(a).

Notice furnished to an executive officer of an employee's organization or trade association is deemed notice to the entire membership, K.S.A. 4318(b)(2). (Publication of notice in Kansas Register is adequate notice to those persons subscribing to that publication. Kan. Att’y Gen. Op. 1982-141). (Notice requirements are met by making agenda available at city building during business hours and by mailing copies to those requesting. 1979-218). (Does not have to be mailed if available at public place. 1986-113). An appropriate notice under the circumstances regarding legislative conference committee meeting must be given to any person requesting a notice. 1993-113.

Public agenda items required - Minutes must reflect the justification for closing the meeting, the subjects to be discussed during the closed session, and the time and place at which the open meeting shall resume. K.S.A. 75-4319(a); Kan. Att’y Gen. Op. 1988-33.

No other information is required in notice.

Intentional violation subjects the violator to a possible civil penalty of not more than $500. Any binding action taken at any such meeting held in violation of the provisions of the Act is voidable. K.S.A. 75-4320(a). If a body subject to the Open Meetings Act violates the Act by taking binding action in executive session, the action is voidable. K.S.A. 75-4318, 75-4319. Krider v. Board of Trustees of Coffeyville Community College, Montgomery County, 2004, 83 P.3d 177, 277 Kan. 244.

c. Minutes

There are no requirements for minutes except as set forth in K.S.A. 75-4319(a) which requires that “[t]he complete motion shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the public body or agency.” A recent Attorney General Opinion provides that “[a] motion to recess into a closed or executive meeting must be recorded in its entirety in the minutes of the public body or agency. The recording of the motion is not “complete” if it merely summarizes the actual motion in a manner that addresses only the three statutory elements but omits other content of the motion as it was in fact made.” Kan. Att’y Gen. Op. 2018-1.

Only those minutes reflecting requirements of are public, otherwise minutes of executive session are not open to public inspection. KORA, K.S.A. 45-221 et. seq.

d. Requirement to meet in public before closing meeting

K.S.A. 75-4319(a) which requires that minutes reflect the reason for closing the meeting, the subjects to be discussed during the closed meeting, and the time and place that the open meeting will resume implies that an open meeting must be held prior to recessing for a closed meeting. Kan. Att’y Gen. Op. 1986-33.

The Kansas Bioscience Authority has authority to close an open meeting for the purpose of having an executive session to discuss or consider marketing or operational strategies even absent a “contract for” such topics if it finds that disclosure of such information would be harmful to its competitive position. Kan. Att’y Gen. Op. 2011-23.

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

Under the Kansas Open Records Act, draft minutes of a county commission meeting are "preliminary drafts" that would fall within the exception in K.S.A. 45-221(a)(20), and the board of county commissioners is not required to disclose them to the public prior to being formally approved by the board unless the draft minutes are publicly cited or identified either in an open meeting, or in an agenda of an open meeting. Kan. Att’y Gen. Op. 2013-5.

A. Exemptions in the open meetings statute

1. Character of exemptions

2. Description of each exemption

a. As otherwise provided by state or federal law or rules of the house or senate. K.S.A. 75-4318(a).

b. Impeachment inquiries or other impeachment matter referred to any committee of the House of Representatives prior to the report of such committee to the full house of representatives. K.S.A. 75-4318(a).

c. Meetings held in deliberation of matters relating to any administrative body acting in a quasi-judicial function. K.S.A. 75-4318(a).

2. Only certain adjudications closed, i.e. under certain statutes

B. Budget sessions

Open to public. Kan. Att’y Gen. Op. 1981-39. The consensus estimating group, which makes recommendations to the legislative budget committee, is an independent group with no statutory authority or duties in the exercise of its functions. The group is not under the guidance of any state agency and does not receive any public funds. Therefore, such group is not subject to KOMA. Kan. Att’y Gen. Op. 1994-93.

H. Grand jury testimony by public employees

I. Licensing examinations

J. Litigation, pending litigation or other attorney-client privileges

Attorney-client consultations may be closed. K.S.A. 75-4319(b)(2). An attorney must be present. Kan. Att’y Gen. Op.s 1978-303, 1986-162. The privilege may not be invoked if third parties are present during the communication. Kan. Att’y Gen. Op.s 1982-247, 1992-56. A city cannot take binding action on a settlement agreement during a closed or executive session. 1993-55.

2. Only those between the public employees and the public body

These are arguably closed since the parole board performs a quasi-judicial function, but practice in Kansas has been to allow public access where requested in advance. Tacha, The Kansas Open Meeting Act; Sunshine on the Sunflower State?, 25 U. Kans. L. Rev. 169, 183 (1977).

3. Dismissal, considering dismissal of public employees

O. Real estate negotiations

Preliminary discussions relating to acquisitions of public land may be closed to public. K.S.A. 75-4319(b)(6); Kan. Att’y Gen. Op.s 1987-91; 1975-203. Discussion relating to the sale of public land are open to the public. 1987-91. A private corporation supporting "the well-planned development of land along Kansas Highway 10" is not a public agency within the meaning of KOMA due to the lack of governmental control and influence. 1994-42.

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

2. When barred from attending

A demand to comply with the KOMA is never too late and can be made seconds before the meeting is held, unless the issue is notice of the meeting. K.S.A. 75-4318 requires that notice of a meeting be requested before it is required to be given (Note that other organizational statutes and ordinances require notice of meetings to be published without interconnection to KOMA).

3. To set aside decision

No procedure for this is specified in the KOMA. Officials are frequently unaware of any violations of the KOMA and will cooperate when the error is presented particularly with an attorney's demand. Calls to county or district attorneys are usually unproductive. The Kansas Attorney General will intervene, but only where the district attorney has failed or refused to act. Experience has shown private attorneys to be more successful in forcing agencies to comply. Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by district attorney or attorney general within 21 days of the meeting. K.S.A. 75-4320.

4. For ruling on future meetings

Experience has not shown agency officials to willingly establish and abide by guidelines for future meetings. Threatened legal action is usually required. Perceived determination of the reporter or other person seeking access is essential. Officials sometimes respond to ideological arguments for openness.

c. Court

2. Applicable time limits

A demand to comply with the KOMA is never too late and can be made seconds before the meeting is held, unless the issue is notice of the meeting. K.S.A. 75-4318 requires that notice of a meeting be requested before it is required to be given (note that other organizational statutes and ordinances require notice of meetings to be published without interconnection to KOMA).

Experience has not shown agency officials to willingly establish and abide by guidelines for future meetings. Threatened legal action is usually required. Perceived determination of the reporter or other person seeking access is essential. Officials sometimes respond to ideological arguments for openness.

Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by district attorney or attorney general within 21 days of the meeting. K.S.A. 75-4320.

b. Invalidate the decision

c. Order future meetings open

5. Pleading format

6. Time limit for filing suit

KOMA contains no period of limitations. K.S.A. 60-514 is a one-year statute of limitation on actions for statutory penalties. Binding action taken in a meeting that violates the open meetings act is voidable in an action brought by district attorney or attorney general within 21 days of the meeting. K.S.A. 75-4320.